The Director of Public Prosecutions v Scheele [2016] ACTCA 23

Parties: The Director of Public Prosecutions (Applicant) Paul Edward Scheele (Interested Party) Representation: Counsel Mr J White SC (Appellant) Mr R Davies (Interested Party)

Solicitors Office of the Director of Public Prosecutions (ACT) (Applicant) Legal Aid Office (ACT) (Interested Party) File Number: ACTCA 63 of 2014

Decision under appeal: Court: ACT Supreme Court Before: Penfold J Date of Decision: 24 November 2014 Case Title: R v Scheele Citation: [2014] ACTSC 317

THE COURT:

1. This reference appeal concerns the proper construction of an important definitional provision in the Firearms Act 1996 (ACT). The particular constructional conundrum that needs to be resolved appears to be the product of a drafting error or oversight on the part of the legislature.

2. It is an offence under s 42 of the Firearms Act for a person to possess a prohibited firearm unless authorised by licence or permit to do so. The ACT Legislative Assembly appears to have intended that an imitation or replica of a firearm would be a prohibited firearm for the purposes of the Firearms Act. On a literal reading of the definition of “prohibited firearm” in s 7 of the Act, however, an imitation or replica of a firearm cannot be a prohibited firearm. That is because the definition uses the word “firearm” and an imitation or replica of a firearm generally cannot be a firearm as defined in s 6 of the Act as such an item is generally not “capable of propelling a projectile by means of an explosive force”. On that literal reading of the definition, therefore, a person who possesses an imitation or replica firearm, such as an imitation pistol or machine gun, cannot be found guilty of the offence of unauthorised possession or use of a prohibited firearm.

3. The question raised by this apparent disjunct between the text of the provision and the apparent legislative intention is this: how far can the court go, in construing the definition of prohibited firearm in s 7 of the Act, to assist the legislation to hit its target and not misfire: cf. Inland Revenue Commissioner v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641 (per Lord Macmillan); Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424D (McHugh JA)?

MR SCHEELE’S TRIAL IS HALTED

4. Mr Paul Scheele was charged with two offences under s 42 of the Firearms Act. It was alleged that on 18 October 2013 he was in possession of three prohibited firearms in circumstances where he was not authorised by licence, permit or otherwise under the Act to possess each or any of the firearms. In the alternative, it was alleged that he was in possession of one prohibited firearm without authorisation. The prosecution case statement stated that at least two of the prohibited firearms that Mr Scheele was alleged to have possessed was an imitation or replica firearm and was not capable of being operated as a firearm.

5. The trial judge refused to put to the jury in Mr Scheele’s trial that an offence under s 42 of the Act could be committed by the possession of a replica or imitation firearm. That ruling presumably brought the trial to a halt, though it is not entirely clear what orders the trial judge actually made.

6. The basis of the trial judge’s ruling was that an imitation or replica firearm that was not capable of being operated as a firearm could not be a prohibited firearm as defined in s 7 of the Act. That was essentially because imitation or replica firearms could not fall within the s 7 definition because they were not firearms as defined in s 6 of the Act.

7. Section 7 of the Act provides as follows:

(1) In this Act: prohibited firearm— (a) means— (i) a firearm described in schedule 1; and (ii) a firearm prescribed by regulation; and (iii) something declared to be a prohibited firearm under section 31; and (b) includes a modified firearm. Note A prohibited firearm includes a prohibited pistol (see sch 1, items 19 to 21). (2) However, prohibited firearm does not include something declared not to be a prohibited firearm under section 31. (3) A regulation may amend schedule 1 by— (a) adding the name or description of a firearm; or (b) amending a name or description of a firearm to more accurately describe the firearm; or (c) omitting the name and description of a firearm. (4) In this section: modified firearm means a firearm that would be a prohibited firearm if— (a) it did not have something missing from it, or a defect or obstruction; or (b) something had not been added to it.

8. It was common ground that the imitation or replica firearms that were alleged to be in Mr Scheele’s possession did not fall within subparagraphs (a)(ii) or (iii) or paragraph (b) of s 7(1). The prosecution contended that the firearms fell within subparagraph (a)(i) because they were firearms described in Schedule 1 to the Act.

9. Schedule 1 to the Act is a table containing descriptions of 23 items. Item 18 in that table is in the following terms: [A]n imitation or replica of any firearm (including an imitation or replica pistol, blank fire pistol, paintball marker, shortened firearm, machine gun or submachine gun) unless it is of a type approved by the registrar.

10. The difficulty for the prosecution was (and is) that s 7(1)(a)(i) uses the word “firearm”. It does not say that prohibited firearm means an “item” or “something” described in Schedule 1. It says that the prohibited firearm means a “firearm” described in the Schedule.

11. Section 6 of the Act contains a definition of “firearm” in the following terms:

(1) In this Act: "firearm"— (a) means a gun, or other weapon, that is, or at any time was, capable of propelling a projectile by means of an explosive force, however caused; and (b) includes— (i) a blank fire firearm; and (ii) an airgun; and (iii) a paintball marker; and (iv) something declared to be a firearm under section 31; and (v) a modified item; and (2) However, firearm does not include— (a) something prescribed by regulation not to be a firearm; or (b) something declared not to be a firearm under section 31. (3) In this section: modified item means something that would be a firearm if— (a) it did not have something missing from it, or a defect or obstruction; or (b) something had not been added to it.

12. It was common ground that the imitation or replica firearms that were alleged to be in Mr Scheele’s possession did not fall within the s 6 definition. That is because they were not capable of propelling a projectile. They were not firearms for the purposes of the Act. The trial judge found that they therefore could not be prohibited firearms as defined in s 7 of the Act.

13. The prosecutor submitted before the primary judge that the reference to “firearm” in s 7 did not rely on the definition of firearm in the Act. Rather, the word “firearm” was used as a shorthand reference for everything that was described in Schedule 1. It therefore included items described in item 18 of Schedule 1 even though the items described there were unlikely to be firearms as defined in s 6. The prosecutor submitted that unless s 7 was construed in that way, item 18 would be ineffective.

14. The primary judge rejected the prosecutor’s submissions. Her Honour found, in short, that the definition of “firearm” in s 6 applied to the use of that word in s 7 because there was no apparent contrary intention: Legislation Act 2001 (ACT), s 155. Her Honour reasoned that when regard was given to the subject matter, scope and purpose of the Act as a whole, it was intended that “prohibited firearms” were a subset of “firearms”.

THE DIRECTOR’S REFERENCE APPEAL

15. The Director of Public Prosecutions applied for a reference appeal pursuant to s 37S of the Supreme Court Act 1933 (ACT). That section applies if a person has been charged on indictment in the Court and the proceeding, in relation to all or any part of the indictment, has been concluded. No party suggested that s 37S did not apply to the proceeding before the primary judge. It may be assumed, therefore, that the primary judge’s ruling effectively concluded the proceeding in relation to the indictment against Mr Scheele.

16. Subsection 37S(2) provides that the Court of Appeal may, on application by, inter alia, the Director, hear and decide any question of law arising at or in relation to the proceeding. The decision does not invalidate or affect any verdict or decision given in the proceeding.

17. The Court’s role in a reference appeal is to correct any error of law that may have arisen in the proceeding on indictment so that the question of law will be applied correctly in the future: Director of Public Prosecutions v SC [2012] ACTCA 30 at [33] (Refshauge and Lander JJ). A reference appeal should properly only involve a question of law of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes: R v J (1987) 9 NSWLR 615 at 616G.

18. The Director’s application posed the question of law that arose in Mr Scheele’s case in the following terms:

Are the things described in Item 18 of Schedule 1 of the Firearms Act 1996, namely “an imitation or replica of any firearm (including an imitation or replica pistol, blank fire pistol, paintball marker, shortened firearm, machine gun or submachine gun) unless it is of a type approved by the registrar” “prohibited firearms” for the purposes of section 42 of that Act?

19. Mr Scheele, who was represented at the hearing of the reference appeal, did not contend that this was not an appropriate question of law for the purposes of a reference appeal. Nevertheless, it is at least doubtful that the question is couched in suitable terms. A more appropriate statement of the question of law that arises from the decision of the primary judge is as follows: whether, upon a proper construction of s 7(1)(a)(i) of the Firearms Act, an item described in schedule 1 can be a prohibited firearm if it is not a firearm as defined in s 6 of the Firearms Act.

20. Expressed in those terms, the question of law is a suitable question for a reference appeal under s 37S of the Supreme Court Act.

21. The Director contended that the question of law (either as posed by him or as reformulated above) was to be answered in the affirmative: an item described in Schedule 1 could be a prohibited firearm even if it was not a firearm as defined in s 6. The Director advanced three main submissions in support of that answer to the question.

22. First, the Director submitted that the definition of firearm in s 6 did not apply where the word firearm is used in s 7(1)(a)(i) because the Act disclosed a contrary intention for the purposes of s 155 of the Legislation Act. The contrary intention was, in the Director’s submission, disclosed by the fact that the legislature plainly intended that the items described in item 18 of Schedule 1 would be prohibited firearms. If the s 6 definition applied, that intention would be defeated and item 18 would have no work to do.

23. Second, the Director contended that the s 7 definition of prohibited firearm stood by itself and did not incorporate the s 6 definition of firearm. In the Director’s submission, the primary judge erred in construing the Firearms Act as providing that prohibited firearms were a subset of firearms.

24. Third, the Director relied on s 139 of the Legislation Act, which provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. The Director submitted that an interpretation of the Firearms Act which gave item 18 of Schedule 1 some work to do was to be preferred to one that did not.

STATUTORY CONSTRUCTION – SOME RELEVANT PRINCIPLES

25. The issue raised by the reference appeal is one of statutory construction. Before addressing the specific question of construction thrown up by this matter, some of the relevant principles of statutory construction that may assist the resolution of the question should be outlined.

26. Chapter 14 of the Legislation Act is intended to provide guidance in relation to the interpretation of Acts: s 137(1). It is not, however, a comprehensive statement of the law of interpretation applying to Acts: s 137(2). Rather, it assumes that “common law presumptions” operate in conjunction with it. Most of the provisions in Chapter 14, and certainly those that are relevant to the issue of construction raised by this matter, are essentially restatements of principles of statutory construction that have developed in the common law. Chapter 14 must be read with those common law principles firmly in mind.

27. The task of statutory construction must begin and end with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46-47 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]. Nevertheless, the text must be considered in context. Context in that regard may include the general purpose and policy of the provision in question and the Act as a whole, the legislative history and, in certain circumstances, extrinsic material. The importance of context has been repeatedly referred to and emphasised by the High Court in recent times: see in particular, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 (per Toohey, Gaudron and Gummow JJ); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 280-281 [10]-[11] (per McHugh ACJ, Gummow and Hayne JJ); Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 at 381-381 [69]-[72] (per McHugh, Gummow, Kirby and Hayne JJ).

28. The importance of context, including the purpose of the Act in question, is also emphasised in the Legislation Act. Section 139 provides that in working out the meaning of an Act (which includes resolving an ambiguous provision of an Act: see s 138(a) of the Legislation Act), the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. So far as context is concerned, s 140 provides that the provisions of an Act must be read in the context of the Act as a whole.

29. The reference to the purpose of an Act in provisions such as s 139 of the Legislation Act does not provide a court with a licence to ignore the words of the Act, or to rewrite the provision in question. In Mills v Meeking (1990) 169 CLR 214 at 235, Dawson J said the following concerning an equivalent provision in the Interpretation of Legislation Act 1984 (Vic):

Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.

30. Where there are apparently conflicting statutory provisions, the Court’s task is to endeavour to resolve or alleviate the conflict, so far as possible, by giving each provision a meaning which best gives effect to the language and purpose of the provisions, while maintaining the unity and harmonious goals of the Act viewed as a whole: Project Blue Sky at 381-382 [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ). The court must strive to give meaning to every word used in the provisions and ensure, so far as possible, that no clause, sentence or word is rendered superfluous, void or insignificant: Project Blue Sky at 382 [71] referring to Commonwealth v Baume (1905) 2 CLR 405 at 414 (per Griffith CJ).

31. Where the court can construe the words actually used in a way that can resolve the conflict consistent with the statutory purpose, it will generally do so notwithstanding the specific construction is not the literal construction, even if it may be a strained construction: Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292 at 302C (per McHugh JA); R v Young (1999) 46 NSWLR 681 at 687-688 [15]-[16] (per Spigelman CJ). As Kirby J put it in James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 at 82 [73], “unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed”.

32. A particular instance where a strained or modified construction may be preferred over the literal meaning of the text of the provision is where there has been an apparent legislative oversight or error. In such circumstances, the court may be justified in arriving at a modified construction, including, in some circumstances, effectively reading the provision as if it contained additional or different words, if the apparent statutory purpose would otherwise be defeated. Ordinarily, however, four conditions need to be met before such an approach is able to be taken: Wentworth Securities Ltd v Jones [1980] AC 74 at 105; Inco Europe Ltd v First Choice Distributors [2000] 1 WLR 586 at 592 (per Lord Nicholls of Birkenhead); R v Young at 686-687 [9]-[12] (per Spigelman CJ); R v PLV (2001) 51 NSWLR 736 at 743 (per Spigelman CJ); Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96; Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 544-545 [22]-[25] (per French CJ, Crennan and Bell JJ).

33. First, the precise purpose of the provision must be able to be identified. Second, the court must be satisfied that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose. Third, the court must identify the words that the legislature would have included or used. Fourth, the “modification” must be consistent with the wording otherwise adopted by the draftsman.

34. The fourth of these conditions is consistent with the general principle that, even when a court adopts a purposive construction of a provision, it is not at liberty to give it a construction that is unreasonable or unnatural: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 (per McHugh J); IW v City of Perth (1997) 191 CLR 1 at 12 (per Brennan CJ and McHugh J). The court cannot rewrite an Act in light of its purpose: Mills v Meeking at 235 (Dawson J).

35. In Taylor, French CJ, Crennan and Bell JJ made the following observation (at 548 [38]) concerning the circumstances where a court may read a statutory provision as if it contained different or additional words so as to cure an apparent drafting error:

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”. (footnotes omitted)

36. Their Honours also emphasised (at 549 [39]) that “the task remains the construction of the words the legislature has enacted”. Any modified meaning must be consistent with the language in fact used by the legislature. Even if the first three conditions are met, the court may nevertheless not interpret a provision in accordance with the presumed underlying intention of Parliament if the alteration to the language in the provisions is “too far-reaching”: Inco Europe at 592 (per Lord Nicholls of Birkenhead); Taylor at 549 [40] (per French CJ, Crennan and Bell JJ). As Kirby J acknowledged in James Hardie v Seltsam (at 82 [73]), the court may be forced to accept that the legislature missed the target if the words in fact used in the provision are “unyielding”. And, as French CJ, Crennan and Bell JJ pointed out in Taylor (at 549 [40]), a purposive construction that departs too far from the statutory text may violate the separation of powers in the Constitution.

37. As for definitional provisions, as already indicated, s 155(1) of the Legislation Act provides that a definition in an Act applies except so far as the contrary intention appears. In considering whether there is a contrary intention, the court must decide whether it was the intention of the legislature that the definitional provision should apply to the particular section: Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635 (per Barwick CJ, McTiernan and Taylor JJ); Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108-109 C-A. There is no simple formula for deciding when that is the case.

38. Importantly, a definition section must be considered in the context of the Act as a whole: Mutton at 108D (per Mahoney JA); Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 at 289 – 290. Where a word is used throughout an Act, it should generally be given the same meaning unless there is a reason to do otherwise: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 (Mason J).

39. In Mutton, Mahoney JA referred (at 108F) to some circumstances in which displacement of a statutory definition might occur. Those circumstances included: where the provision would not appropriately work if the definition applied and where the application of the definition to a section would result in the section operating in a way which the legislature did not intend.

CAN AN ITEM THAT IS NOT A FIREARM BE A PROHIBITED FIREARM?

40. There is undoubtedly a problem in working out the meaning of the definition of prohibited firearm in s 7(1)(a)(i) of the Firearms Act. It is difficult to avoid the conclusion that the problem is the product of anything other than legislative oversight or error.

41. The problem is that, like the vast majority of sections in the Firearms Act, s 7(1)(a)(i) utilises the word “firearm”: a prohibited firearm means “a firearm described in Schedule 1”. Not surprisingly, given the subject matter and object of the Firearms Act, the word “firearm” is the subject of a comprehensive definition in s 6. The problem is that if that definition is applied to the word “firearm” as used in s 7(1)(a)(i), the result is that most of the objects described in at least one of the items in Schedule 1, item 18, are unlikely to be prohibited firearms because they are not firearms.

42. It does not, however, follow, as the Director submitted, that Item 18 has no work to do, though it may be accepted that it has limited work to do.

43. There was no specific evidence of this, but it is not unrealistic to conceive of an imitation or replica firearm which may also be capable of propelling a projectile by an explosive force, albeit without the force or lethality of a “real” firearm. An example would be an object that for all intents and purposes looked exactly like a “real” firearm, but was only capable of propelling a cork or other relatively harmless projectile: much like a “cap” or “pop” gun of old. Such imitation or replica firearms are, however, likely to be few in number. In such circumstances, item 18 would have some work to do, but not much. That is a somewhat unsatisfactory result because it may safely be inferred that the ACT Legislative Assembly intended that item 18 would have more significant work to do.

44. There is no doubt that the Court must strive to resolve this apparent conflict. But can it be resolved having regard to the language actually used in s 7(1)(a)(i) when read in the context of the Firearms Act as whole? Are the words actually used in s 7(1)(a)(i) reasonably capable of being construed in such a way that meaning can be given to item 18 in Schedule 1 without doing violence to the language used in that provision, and without sabotaging the unity and harmonious objects of the Firearms Act?

45. The Director’s proposed resolution to the apparent conflict, whilst put in various different ways, hinges on the proposition that the word “firearm”, when used in s 7(1)(a)(i) does not bear its defined meaning. There are, however, at least two difficulties with that proposed construction of s 7(1)(a)(i). First, contrary to the Director’s submission, when s 7(1)(a)(i) is read in the context of the Firearms Act as a whole, it is not possible to discern a contrary intention for the purposes of s 155 of the Legislation Act. Second, if the word firearm is not given its defined meaning when used in s 7(1)(a)(i), what meaning is it to be given? The only alternative construction that that Director could ultimately come up with essentially ignored the language used in the section. The Director was, in effect, asking the Court to rewrite the section.

46. The Director contended that a contrary intention was apparent in relation to the use of the word “firearm” in s 7(1)(a)(i) because if the definition applied, item 18 in Schedule 1 had no work to do. That is no doubt a highly relevant consideration. When considered in the context of the Act as a whole, however, it does not demonstrate any contrary intention. All that it reveals is a drafting error. While Parliament may have intended that items described in item 18 in Schedule 1 would be prohibited firearms, it would be artificial, if not entirely fictitious, to pretend that it intended that the word “firearm” should have some meaning other than the defined meaning when used in s 7(1)(a)(i). The ACT Legislative Assembly did not turn its mind to that circumstance.

47. When the Firearms Act is read and considered as a whole, it is clear, as the primary judge found, that the composite expression “prohibited firearm” was intended by the drafter and the Assembly to be a subset of the expression “firearm” as defined in s 6. To be a prohibited firearm, an item had to first be a firearm. The statutory scheme and purpose of the Firearms Act would not operate harmoniously were it otherwise.

48. The objects of the Firearms Act are identified in s 5(2) in the following terms:

(2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic firearms, self-loading rifles and shotguns (including pump action shotguns), except in special circumstances; (b) to establish an integrated licensing and registration scheme for all firearms; (c) to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm; (d) to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms; (e) to ensure that firearms are stored and conveyed in a safe and secure manner; (f) to provide for an amnesty period to enable the surrender of certain prohibited firearms.

49. The statutory scheme established by the Firearms Act to achieve those objectives includes establishing a regime for firearms licences (P t 7); permits to acquire firearms (Pts 9 and 10); the registration of firearms and firearm users (Pt 11); and the licensing of firearms dealers (Pt 13). The regime does not, in terms, provide for licences, permits or authorisations in relation to prohibited firearms. That is despite the fact that various offence provisions, including s 42 of the Firearms Act, indicate that a person may be authorised by licence, permit or otherwise, to possess or use a prohibited firearm.

50. If prohibited firearms were not a subset of firearms, the regime for licences and permits under the Firearms Act would not apply to prohibited firearms, or at least would not apply to prohibited firearms that were not firearms. It would not, for example, be possible for a person to obtain a licence or permit to use or possess an imitation or replica firearm in any circumstances. That would result in some unusual, and no doubt unexpected and unintended outcomes. For example, a drama company could not stage a play which included use of a replica firearm without risk of committing an offence against s 42 of the Firearms Act. It could not obtain an authorisation or permit to do so. That would be incongruous and inconsistent with the unity of the statutory scheme and the objects of the Firearms Act.

51. The Firearms Act also creates a series of offences relating to the acquisition, possession, use and disposal of firearms. For the most part, those offence provisions distinguish between firearms and prohibited firearms, but only for a limited purpose. That purpose is to provide for a more severe penalty where the particular offence is committed in respect of a prohibited firearm, as opposed to a mere firearm: see for example ss 42, 43, 45, 177, 180, 226 and 227.

52. The wording of each of those offence provisions strongly suggests that all prohibited firearms are intended to be firearms. For example, s 42 provides that a person commits an offence if the person possess prohibited firearms and is not authorised by licence, permit or otherwise under the Act to possess or use “each of the firearms”. Each of the other offence provisions referred to earlier uses similar language.

53. Part 2 of the Firearms Act contains a number of important provisions that either define words used in the offence provisions, or explain concepts that are relevant to the operation of the offence provisions. In defining the words or explaining the concepts, however, the provisions of Part 2 refer only to firearms, not to prohibited firearms. For example, ss 8, 9 and 10 provide for the meaning of “acquire a firearm”, “dispose of a firearm” and “possession of a firearm” respectively. Sections 11, 12, 13 and 14 provide detailed explanations about when a person may or may not be taken or found to be in possession of “a firearm”.

54. The important point is that because these provisions do not separately refer to prohibited firearms, they would not apply to cases where a person was charged with possessing a prohibited firearm that was not a firearm (if that was possible). That is by no means an academic or hypothetical proposition on the Director’s proposed construction. It would have applied in Mr Scheele’s case. Thus, had Mr Scheele’s case proceeded to trial on the basis of the Director’s construction of the relevant provision, he would not have been able to rely, for example, on s 11 of the Firearms Act, which sets out various circumstances where a person is not taken to have possession of a firearm.

55. The operation of the provisions in Part 2 strongly indicates that the overall statutory scheme in the Firearms Act envisages that all prohibited firearms are also firearms.

56. The Director sought to get around this difficulty by proposing a somewhat tortured construction of the provisions in Part 2. He submitted that the references to “firearm” in, for example, ss 8, 9 and 10, should be read as including the words “including a firearm described in s 7”. This tortured reading of ss 8, 9 and 10 was supposedly justified by the “independent operation” of s 7. In fact, it simply revealed exactly why the Director’s proposed construction of s 7 is inconsistent with the general scheme of the Act.

57. Finally, as one would expect, the word “firearm” is used in virtually every section of the Firearms Act. It should be presumed, in the absence of some good reason, that the meaning of the word is consistent throughout the Act. The only occasion where the Director suggests that the word does not bear its defined meaning is in s 7(1)(a)(i). It is difficult to accept that this was the intention of the drafter or the Assembly. When the Act is read as a whole, the Director’s contention must be rejected.

58. In determining whether there is a contrary intention in s 7(1)(a)(i) for the purposes of s 155 of the Legislation Act, it is necessary to consider s 7(1)(a)(i) in the context of the Act as a whole. When that is done, it cannot be concluded that there is a contrary intention as the Director contends. Indeed, the general objects of the Act and the statutory scheme established to achieve those objects strongly suggests that the s 6 definition of “firearm” was intended to apply to s 7(1)(a)(i). The unfortunate result is that item 18 of Schedule 1 may have little or no work to do. That would appear to be the product of oversight or error on the part of the drafter and the Assembly. A contrary intent should not be artificially constructed to attempt to cure that oversight or error, particularly where that would upset the unity and harmonious goals of the statutory scheme.

59. The second and related difficulty with the Director’s proposed construction is that, if the word “firearm “ does not bear its defined meaning when used in s 7(1)(a)(i), it is unclear exactly what meaning it should be given. The Director eschewed any suggestion that the word should be given its ordinary meaning. That is perhaps understandable because, if the word does have an ordinary meaning, it is probably consistent with the definition in s 6(1)(a) of the Firearms Act. If that were the case, a replica or imitation firearm that fell within the description in item 18 of Schedule 1 would still not be a firearm and therefore would not be a prohibited firearm within s 7(1)(a)(i).

60. Ultimately, the Director was driven to accept that the only alternative interpretation of the word “firearm” in s 7(1)(a)(i) that would result in item 18 of Schedule 1 having some work to do was if the word “firearm” was read as if it meant “item” or “something”. Read that way, the effect would be that anything described in Schedule 1 would be a prohibited firearm, regardless of what it was. It would not have to be a firearm. If an item in Schedule 1 described an umbrella, an umbrella would therefore be a prohibited firearm.

61. The difficulties that arise from the fact that, on this alternative construction, prohibited firearms would not be a subset of firearms, have already been discussed. The additional difficulty is that, even accepting that there was some oversight or error on the part of the legislature in drafting the provision in such a way that read literally, item 18 in Schedule 1 may have no work to do, that does not provide the Court with a licence to rewrite s 7, or to read different words into the section. The word actually used (“firearm”) is unyielding. The alternative or modified construction (“item” or “something”) is not consistent with the word actually used in the provision. The modified construction proposed by the Director is unnatural, incongruous or unreasonable. As French CJ, Crennan and Bell JJ said in Taylor, a construction which involves adding or omitting words is not justified to fill gaps disclosed in legislation, or if the proposed construction is too much at variance with the language in fact used by the legislature.

62. Finally, the construction urged by the Director would extend the operation of the offence provisions in the Firearms Act, including s 42, beyond the scope otherwise suggested by the clear words used. The effect would be that, despite the clear words used in s 7, a person could be charged and convicted of using or possessing a prohibited firearm that was not a firearm. That would be contrary to the well established principle of statutory construction that the court will not disregard the clear words of a legislative provision so as to extend the scope of criminal liability, even if it thinks that, by inadvertence or error, the legislature has failed to deal with that matter: Krakouer v The Queen (1998) 194 CLR 202 at 223 [62]-[63] (McHugh J). In Ex parte Fitzgerald, Re Gordon (1945) 45 SR (NSW) 182 at 186, Jordan CJ put the principle in the following terms:

If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.

63. It is no answer to this to say that the ACT Legislative Assembly had intended to make it an offence to possess a replica or imitation firearm. That may be so. The fact remains, however, that by error or inadvertence, the drafter did not provide that an item that was not a firearm could nonetheless be a prohibited firearm. The clear words of the relevant provision did not extend criminal liability that far.

64. For the reasons already given, this is not a case where the court can “assist the written law to hit its target and not to misfire”: cf. Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 at 207 [89] (Kirby J). To do so would be to do violence to the words in fact used and, more significantly, would result in an unwarranted interference in the unity and harmonious goals of the statutory scheme in the Firearms Act. If the legislature wishes to hit this particular target, it will have to amend the legislation.

65. The question of law raised by the Director’s reference appeal is accordingly answered “no”. An item described in Schedule 1 to the Firearms Act (including item 18) which is not a firearm as defined in s 6 cannot be a prohibited firearm as defined in s 7(1)(a)(i).

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 28 June 2016